State v. Landwehr

• Decision Date: 13 October 1930
• Docket Number: No. 30160.,30160.
• Citation: 32 S.W.2d 83
• Parties: STATE ex rel. KERR et al., State Board of Health, v. LANDWEHR, Circuit Judge.
• Court: Missouri Supreme Court

32 S.W.2d 83

STATE ex rel. KERR et al., State Board of Health, v. LANDWEHR, Circuit Judge.

No. 30160.

Supreme Court of Missouri, Division No. 2.

October 13, 1930.

Petition for writ of prohibition by the State, at the relation of Dr. H. L. Kerr and others, composing the State Board of Health, to prohibit Hon. Frank Landwehr, Judge of the Circuit Court of the City of St. Louis, to exercise jurisdiction, by certiorari, to review a revocation of physician's license. Rule to show cause issued.

Preliminary rule quashed, and writ denied.

Stratton Shartel, Atty. Gen., and A. B. Lovan, Asst. Atty. Gen., for relators.

Curlee, Nortoni & Teasdale, J. Henry Caruthers, and Oliver T. Remmers, all of St. Louis, for respondent.

DAVIS, C.

The state of Missouri, at the relation of the doctors comprising the state board of health, petitioned this court for a writ of prohibition, to prohibit Hon. Frank Landwehr, judge of the circuit court of the city of St. Louis, from exercising jurisdiction, by virtue of a writ of certiorari, to review the action of the board of health in revoking the license of Dr. Hugo L. Baepler, theretofore granted, to practice medicine and surgery in the state of Missouri. A preliminary rule was issued by this court to respondent to show cause why he should not be prohibited from exercising such jurisdiction. Respondent in due time filed a return. The cause is here upon the petition and the return.

The facts as related in the petition develop that Dr. Hugo L. Baepler was granted, on February 1, 1921, a license by the state board of health of Missouri to practice medicine and surgery. On February 13, 1925, one Joseph R. Sintzell signed a complaint which stated, in substance, that said Baepler by false and fraudulent statements and representations under oath in his application represented that he attended the St. Louis College of Physicians and Surgeons in 1911, 1912, 1913, 1914, 1917, and 1918, whereas in truth and fact he attended said college for one year from 1917 to 1918. On February 13, 1925, the said board of health served the aforesaid complaint and a notice on said Baepler, notifying him to appear before the state board of health at the city of St. Louis, Mo., at city health commission office, Thirteenth and Market streets, on March 19, 1925, at 9 a. m., to answer said complaint. On April 3, 1925, the said state board of health made a finding, in substance, that said Baepler was duly served by a written complaint filed with said board February 13, 1925, and that the trial was called April 1, 1925, and that Baepler was called three times, and that he did not answer either in person or by his attorney; that he was charged with making fraudulent representations, and that he stated under oath in his application that he had attended the St. Louis College of Physicians and Surgeons in the years 1911, 1912, 1913, 1914, 1917, and 1918, whereas, in truth and fact, said Baepler never attended the St. Louis College of Physicians and Surgeons for four years, but only attended one year from October, 1917, to May, 1918. Thereupon the board revoked Baepler's license to practice medicine and surgery.

On August 14, 1929, Beapler applied to the circuit court of the city of St. Louis, division 14, for a writ of certiorari, and recited in the application the following: That the complaint and notice had been served on him; that his attorney prepared and filed an answer to said complaint; that he appeared before the board on March 19, 1925, but that the board was engaged in hearing other complaints; that the board adjourned and reconvened for further hearings; that on April 3, 1925, without notice to him and without a hearing, the board revoked his license; that no notice that his license was revoked was ever given or served upon him by the board, but that he first learned of the action of the board on July 3, 1929; that on July 24, 1929, he petitioned the board for reinstatement, but it was denied; that the ground upon which his license was revoked was never a ground for revocation, because the board did not then have the right in the determination of the granting of a license to consider the length of attendance at school. Baepler then asked for a writ of certiorari, praying the certification of the proceeding of the board and for the review of the legality of its action. The circuit court issued the writ, and the board filed a motion to quash the writ, under section 7336, Revised Statutes 1919, on the grounds that the writ did not issue within ninety days after the revocation of the license, and that the writ was not applied for within four years, which the court overruled.

The relators aver that respondent does not have jurisdiction to hear and determine the matter, because the writ of certiorari was not applied for within ninety days after the revocation of the license. A preliminary rule was served on respondent, and on January 22, 1930, respondent filed his return to the preliminary writ, in substance, as to the pertinent portions, as follows:

Respondent admits the service of the complaint and notice and the finding of the board on April 3, 1925. He admits the application for the writ of certiorari to the circuit court. He admits that relator's petition for writ of prohibition correctly sets forth the matters stated in his application for a writ of certiorari, and recites, in substance, additional matters and things thus:

That he received a diploma in 1908 from St. Paul's College at Concordia, Mo.; that he attended the St. Louis College of Pharmacy for two years and in 1911 graduated and received a diploma, with degree of bachelor of pharmacy; that, upon entering the St. Louis...